Legal Series: Future Trends in False Advertising
False advertising law, both under the Lanham Act and in state law consumer class actions, has been a hotbed of activity in the past year. The Lanham Act prohibits false advertising, trademark infringement, and trademark dilution. State consumer protection laws can prohibit false advertising, including omissions and any statement likely to mislead consumers. This valuable course will help you stay abreast of false advertising law and learn how to defend against class actions, claims for monetary damages, and injunctive relief.
Some of the major topics that will be covered in this course include:
- False advertising law
- Recent Supreme Court Lanham Act developments
- Developments in false advertising class actions
- Strategies for defeating class certification
- Use of Surveys
- Future Trends
Penelope A. Preovolos, Partner
Morrison & Foerster LLP
- The Supreme Court’s Pom Wonderful v. Coca-Cola Decision: what does it mean for defending false advertising cases?
- Ascertainability in false advertising class actions: the evolving state of the law
- Is there still a reliance requirement in false advertising class actions?
- Strategies for defeating class certification in false advertising cases
- GMOs: the next frontier in false advertising litigation
Jeffrey A. Klein, Principal
- Recent issues arising where Plaintiff has sought the recovery of Defendant’s profits. Cases and discussion may touch on deductions from Defendant’s gross revenue and recent decisions addressing issues dealing with deductions and/or apportionment.
- Discussion of recent cases in the California and/or the 9th Circuit that deal with damages issues at the class certification stage in false advertising and unfair competition cases arising under state law, focusing on the post-Comcast impacts. Topics that may be addressed include tying damages model to theory of liability and the need to articulate a model with some specificity.
- Issues arising at the Preliminary Injunction stage that invoke financial and economic questions. Topics may include courts continued march away from any presumption of irreparable harm at the Preliminary Injunction stage, and courts continued focus on the substance of the evidence substantiating any bond request if a Preliminary Injunction was in fact granted.
Jeffery A. Stec, Vice President
Charles River Associates
- The use of surveys in establishing/proving that a statement is misleading, confusing, or deceiving.
- Surveys have often been used in false advertising cases to provide evidence that consumers have been misled/confused/deceived by the relevant advertising.
- However, in many cases, the survey evidence presented was lacking from a methodological and/or substantive perspective.
- I will present a review of recent cases that provide a roadmap on where these surveys have failed and provide insights on how to avoid these issues when designing or overseeing the designing of a false advertising survey.
- Proving lost sales/lost goodwill damages due to false advertising.
- Plaintiffs are entitled to an award of damages that compensate it for lost sales and/or loss of goodwill due to the false advertisement.
- However, determining the impact a false advertisement has had on the Plaintiff’s sales and/or goodwill can be difficult to show.
- Under the Lanham Act, when a finding of false advertising has been made, the Plaintiff can recover the Defendant’s ill-gotten profits in lieu of damages due to lost sales and/or lost goodwill.
- I will present examples of the various means that have been used to try to show actual harm (lost sales/goodwill) and examine the likelihood that these methods can lead to a successful claim of lost sales and/or lost goodwill.
Who Should Attend:
- Advertising and Marketing Professionals
- Advertising Attorneys
- Advertising Professionals
- Advertising/Marketing Officers
- Brand Managers
- Chief Information Officers
- Other Related/Interested Professionals
Penelope Preovolos has served as lead counsel in a number of major consumer class action and antitrust cases spanning more than a quarter century. She has extensive experience in defending and counseling clients in antitrust, consumer class actions, product liability, privacy and data security matters. Her clients span a range of industries, with an emphasis on consumer electronics and technology companies. Ms. Preovolos continues to be recommended by Legal 500 US in the areas of “product liability and mass tort defense: consumer products” and "marketing and advertising" and has been named San Francisco Litigation – Antitrust “Lawyer of the Year” by Best Lawyers in America 2014. She is also recommended as a leading lawyer by Chambers Global, Chambers USA, Practical Law Company’s Which lawyer? and Super Lawyers. According to Chambers USA 2014, Ms. Preovolos is “a superb all-around antitrust lawyer.”
Penelope Preovolos has served as lead counsel in a number of major consumer class action and antitrust cases spanning more …
Jeffrey A. Klein is a Principal in the Los Angeles office of LitiNomics, Inc., a firm specializing in providing financial and economic advisory services related to commercial disputes, including a substantial practice that addresses issues arising in the context of intellectual property disputes. In this position, Mr. Klein focuses on the application of finance, economics, and accounting to issues typically arising in complex business litigation. He has consulted on matters involving allegations of Lanham Act violations and unfair competition claims, including a number of engagements focused on quantifying the harm caused by a party’s alleged false advertising. His work also includes forensic accounting engagements and the study and measurement of the financial impact associated with alleged wrongful conduct involving breach of contract, infringement of other types of intellectual property, and actions arising from tort claims.
Jeffrey A. Klein is a Principal in the Los Angeles office of LitiNomics, Inc., a firm specializing in providing financial …
As a Vice President of Charles River Associates, Dr. Stec has worked with clients in the areas of antitrust, finance, intellectual property, and survey research.
In the area of intellectual property, Dr. Stec has conducted economic and econometric analyses to determine the value of intellectual property as well as the amount of economic damages resulting from patent, trademark, trade secret, copyright infringement, false advertising, and counterfeit claims.
In the area of survey research, Dr. Stec has created numerous telephone, mail, and internet surveys for various clients as well as critically evaluated surveys and survey methodologies in both litigation and non-litigation consulting engagements.
Dr. Stec has a Ph.D and M.A. in economics from the Ohio State University. He also has B.A. degrees in Economics from the University of Illinois – Chicago and in Psychology and Philosophy from Cornell University.
As a Vice President of Charles River Associates, Dr. Stec has worked with clients in the areas of antitrust, finance, …
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About Morrison & Foerster LLP
Morrison & Foerster was founded in San Francisco in 1883. Today, with more than 1,000 lawyers in 17 offices across the U.S., Asia, and Europe, Morrison & Foerster offers clients a comprehensive platform of global legal services. The Firm’s reputation in class action defense has put us on a short list of firms that general counsel nationwide routinely identify as leaders in the field. We defend clients against class actions that span a multitude of different subject areas, including securities, RICO, false advertising, unfair business practices, products liability, financial services, labor and employment, antitrust, and environmental law. We defend nationwide class actions, including as national coordinating counsel, in state and federal courts, and in multi-district litigation where we have served as national coordinating counsel.
LitiNomics is a consulting firm dedicated to supporting corporations, law firms, government entities, and financial institutions as they address issues that arise in commercial litigation. Founded in 2007, LitiNomics is composed of professionals with extensive experience in providing expert research, analyses, valuations and testimony in complex areas concentrated in economic damages and forensic accounting, with a particular emphasis in intellectual property disputes.
From offices in Silicon Valley, Oakland and Los Angeles, LitiNomics’ professionals support clients on a national basis with many of our professionals holding advanced degrees in economics, finance, accounting, business, and law. Since its founding, LitiNomics has grown rapidly and established itself as one of the premier boutique firms in its field.
About Charles River Associates
Charles River Associates is a leading global consulting firm that offers economic, financial, and strategy expertise to major law firms, corporations, accounting firms, and governments around the world.
With proven skills in complex cases and exceptional strength in analytics, CRA consultants have provided astute guidance to clients in thousands of successful engagements. CRA offers litigation and regulatory support, business strategy and planning, market and demand forecasting, policy analysis, and risk management consulting.
CRA’s success stems from the outstanding capabilities of its consultants, many of whom are recognized as experts in their respective fields; its close relationships with a select group of respected academic and industry experts; and from a corporate philosophy that stresses interdisciplinary collaboration and responsive service.
Headquartered in Boston, the firm has offices internationally.